Court of Appeals of Ohio, Eighth District, Cuyahoga
Appeal from the Cuyahoga County Court of Common Pleas Case
Russell S. Bensing ATTORNEY FOR APPELLANT
Michael C. O'Malley Cuyahoga County Prosecutor, Brad
Meyer ATTORNEYS FOR APPELLEE
BEFORE: E.A. Gallagher, J., Keough, A.J., and Kilbane, J.
JOURNAL ENTRY AND OPINION
A. GALLAGHER, J.:
Defendant-appellant Jermain Thomas appeals from his
resentencing in the Cuyahoga County Court of Common Pleas
after remand based on the Ohio Supreme Court's decision
State v Thomas, 148 Ohio St.3d 248, 2016-Ohio-5567,
70 N.E.3d 496 Thomas contends that his maximum, concurrent
sentences on rape and kidnapping charges should be vacated or
modified because the trial court (1) failed to comply with
R.C. 2929.11 and 2929.12 and (2) imposed a harsher sentence
on remand after Thomas' successful appeal. For the
reasons that follow, we vacate his sentences.
and Procedural Background
In 2013, a Cuyahoga County Grand Jury indicted Thomas on
three counts of rape and one count of kidnapping, with
accompanying one-year and three-year firearm specifications,
based on conduct that allegedly occurred in 1993.
In State v. Thomas, 8th Dist. Cuyahoga No. 101202,
2015-Ohio-415 ("Thomas I "), this court
described the incident giving rise to the charges against
Thomas and the reasons for the 20-year delay in prosecuting
Thomas as follows:
The victim, A.W., testified that on the evening of June 28,
1993, she left her house on Dickens Avenue in Cleveland to
walk to her cousin's house on Manor Avenue, one street
over. In the darkness, a man approached her and forced her to
walk south on East 97th Street toward Hilgert Drive. The man
stayed close behind her holding something into her back that
she believed was a gun. They walked up a driveway of a house
next to an empty field where the man forced A.W. onto her
knees and vaginally raped her. Although it was dark, there
was sufficient light for A.W. to see that the man was holding
a gun. There were no known witnesses of the crime.
After the rape, A.W. ran home to use the bathroom before
running to a neighbor's house where a friend called the
police. Later that evening she went by ambulance to St.
Luke's Hospital where Dr. Cynthia Boes ("Dr.
Boes") collected evidence of the rape in a rape kit.
A.W. described the rape in detail to Dr. Boes, who wrote a
narrative account of the incident in A.W.'s chart. A
few days after the rape, Officer Debra Simmons
("Simmons") of the Cleveland Police Department
met with A.W. in her home to investigate the rape. A.W. was
unable to provide a detailed description of the suspect
because it was dark, and she did not look at his face at
any time during the incident. Without any leads, the case
In 2006, scientists at the Ohio Bureau of Criminal
Investigation ("BCI") tested the evidence in
A.W.'s rape kit and found DNA that matched Thomas's
DNA. A detective contacted A.W. and informed her that BCI had
identified a suspect with DNA evidence from the rape kit.
A.W. informed the detective that she did not want to
prosecute him. She explained she "didn't want to
relive that moment again." Accordingly, A.W. signed a
"Waiver of Prosecution, " and the detective once
again closed the investigation.
In 2013, an investigator from the Cuyahoga County
Prosecutor's Office notified A.W. that the
prosecutor's office was proceeding with the prosecution
of the suspect in her rape case. The investigator discussed
the incident with A.W. and presented a photograph lineup of
suspects. A.W. was unable to identify the perpetrator from
the lineup but agreed to assist in the prosecution.
Id. at ¶ 3-6.
The case proceeded to a jury trial. The state dismissed two
of the rape counts and the one-year firearm specifications on
the remaining counts. In February 2014, the jury found Thomas
guilty of one count of rape, one count of kidnapping and the
related three-year firearm specifications. Applying the
sentencing law in effect when the offenses occurred in 1993,
the trial court sentenced Thomas to concurrent indefinite
prison terms of 8 to 25 years on the rape and kidnapping